State v. Wauneka

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Respondent,

v.

DELBERT WAUNEKA, Petitioner.

No. 1 CA-CR 19-0196 PRPC
FILED 4-21-2020

Petition for Review from the Superior Court in Maricopa County
No. CR2016-160880-001
The Honorable William R. Wingard, Judge Pro Tempore

REVIEW GRANTED; RELIEF DENIED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Respondent

Delbert Wauneka, Florence
Petitioner

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop, Judge Maria Elena Cruz, and Judge
David B. Gass delivered the decision of the Court.
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Decision of the Court

PER CURIAM:

¶1 Delbert Wauneka petitions this court for review from the
dismissal of his petition for post-conviction relief filed pursuant to Arizona
Rule of Criminal Procedure (“Rule”) 33.1 We have considered the petition
for review and, for the reasons stated, grant review and deny relief.

¶2 While representing himself with advisory counsel, Wauneka
pleaded guilty to one count of possession of dangerous drugs, a class 4
felony, with one prior felony conviction. He stipulated to an aggravated
six-year prison term.

¶3 Wauneka timely filed a notice for post-conviction relief
(“PCR”) and raised a claim of ineffective assistance of counsel. The superior
court appointed counsel to assist Wauneka with his PCR petition, and
counsel’s subsequent review of the record revealed no colorable claims.

¶4 Proceeding pro per, Wauneka filed a PCR petition raising the
following claims: (1) invalid guilty plea; (2) violations of constitutional
rights (including his right to effective representation by plea counsel); (3)
newly discovered evidence; and (4) unlawful sentence. The superior court
summarily dismissed the petition. We review for an abuse of discretion.
State v. Gutierrez, 229 Ariz. 573, 577, ¶ 19 (2012).

¶5 On review, Wauneka confusingly asserts he is “actually
innocent” because of a purported deficiency in Arizona Revised Statutes
(“A.R.S.”) section 13-3401, the statute that defines terms applicable to drug
offenses. Wauneka also challenges the admissibility of inculpatory
statements he made to the arresting police officer, and he refers to a
purported Brady violation and “tampered . . . false . . . [and] insufficient

1 Effective January 1, 2020, our supreme court amended the
post-conviction relief rules. See Order Abrogating Current Rule 32 of the
Arizona Rules of Criminal Procedure and Adopting New Rule 32 and Rule
33 and Related Provisions, Arizona Court Order No. R-19-0012 (Adopted
Aug. 29, 2019). The rules relating to defendants who plead guilty is now
codified in Rule 33. The amended rules apply to all cases pending on the
effective date unless a court determines that “applying the rule or
amendment would be infeasible or work an injustice.” Order at 2. Because
there were no substantive changes to the respective rules related to this
opinion, we apply and cite to the current rules.

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Decision of the Court

evidence.” See Brady v. Maryland, 373 U.S. 83, 87 (1963). Wauneka
additionally claims the indictment was invalid.

¶6 As noted, Wauneka pleaded guilty. Thus, his claims do not
warrant relief. A plea agreement waives all non-jurisdictional defenses,
errors and defects occurring prior to the plea. State v. Moreno, 134 Ariz. 199,
200 (App. 1982), abrogated on other grounds, State ex rel. Dean v. Dolny, 161
Ariz. 297 (1989). The waiver of non-jurisdictional defects includes
deprivations of constitutional rights. Tollett v. Henderson, 411 U.S. 258, 267
(1973). And defects in an indictment are not “jurisdictional”; they do not
deprive a court of its power to adjudicate a case. United States v. Cotton, 535
U.S. 625, 630-31 (2002).

¶7 Despite Wauneka’s assertions to the contrary, the record
supports the superior court’s finding that he knowingly, voluntarily, and
intelligently pleaded guilty pursuant to the terms in the written plea
agreement. The record also establishes that Wauneka agreed with the
factual basis supporting each element of possession of dangerous drugs.
See State v. Hamilton, 142 Ariz. 91, 93 (1984) (statements to the court at a
change of plea hearing regarding the voluntariness of the plea are normally
binding on the defendant).

¶8 Nonetheless, Wauneka claims plea counsel “coerced” the
plea. But Wauneka began representing himself in this matter well before—
and during—the change of plea hearing. To the extent Wauneka claims
advisory counsel provided ineffective assistance, such a claim is not
colorable. State v. Russell, 175 Ariz. 529, 535 (App. 1993).

¶9 Wauneka also claims the written plea agreement was
“breached” because the prosecutor and advisory counsel “altered” it.
Wauneka apparently refers to the revisions made to paragraph one of the
plea agreement, which detailed the range of sentencing provided by
Arizona law. The alterations, however, correctly reflect the law, and the
record clearly shows that Wauneka agreed to be sentenced to a six-year
prison term. Considering Wauneka agreed he had a prior felony
conviction, the six-year sentence is lawful. See A.R.S. § 13-703(B), (I).

¶10 Without providing context, Wauneka finally mentions a “lab
test . . . that clearly show[s] hepatitis ‘C’ viris [sic] positive ‘Flag’ abnormal.”
Wauneka does not explain how the “lab test” entitles him to relief.

¶11 For the foregoing reasons, Wauneka fails to show the superior
court erred by dismissing his PCR petition. See State v. Poblete, 227 Ariz.

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537, 538, ¶ 1 (App. 2011) (petitioner bears the burden of establishing an
abuse of discretion). Therefore, although we grant review, we deny relief.

AMY M. WOOD • Clerk of the Court
FILED: AA

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